Opinion
June 17, 1996
Appeal from the Supreme Court, Putnam County (Dickinson, J.H.O.).
Ordered that the judgment is modified by adding thereto a provision declaring that the defendants have not abandoned the easement located on the plaintiffs' property; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendants.
In 1947, the defendants' predecessors-in-title were deeded a 10-foot-wide easement along the western boundary of the grantor's adjoining property for access to a public highway. The plaintiffs purchased the adjoining property (the servient estate) in 1984 and commenced this action in 1993, inter alia, for a declaration that the defendants had abandoned the easement. We agree with the court's determination that the plaintiffs failed to meet their burden of proving, by clear and convincing evidence, that the defendants intended to abandon the easement (see, Consolidated Rail Corp. v. MASP Equip. Corp., 67 N.Y.2d 35, 39-40; Gerbig v. Zumpano, 7 N.Y.2d 327, 330-331; Wallkill Farms Homeowners Assn. v. Velazquez, 205 A.D.2d 681).
The plaintiffs' remaining contentions regarding the existence and location of the easement are without merit.
We note that since this is a declaratory judgment action, the court should have directed the entry of a declaration in favor of the defendants rather than dismissal of the first cause of action (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Bracken, J.P., O'Brien, Joy and Goldstein, JJ., concur.